5.  The applicants alleged that in the 1990s the Ministry of Defence operated an Electronic Test Facility (“ETF”) at Capenhurst, Cheshire, which was built to intercept 10,000 simultaneous telephone channels coming from Dublin to London and on to the continent. Between 1990 and 1997 the applicants claimed that the ETF intercepted all public telecommunications, including telephone, facsimile and e-mail communications, carried on microwave radio between the two British Telecom’s radio stations (at Clwyd and Chester), a link which also carried much of Ireland’s telecommunications traffic. During this period the applicant organisations were in regular telephone contact with each other and also providing, inter alia, legal advice to those who sought their assistance. They alleged that many of their communications would have passed between the British Telecom radio stations referred to above and would thus have been intercepted by the ETF.
6.  On 9 September 1999, having seen a television report on the alleged activities of the ETF, the applicant organisations requested the Interception of Communications Tribunal (“the ICT”: see paragraphs 28-30 below) to investigate the lawfulness of any warrants which had been issued in respect of the applicants’ communications between England and Wales and Ireland. On 19 October 1999 an official of the ICT confirmed that an investigation would proceed and added:
“... I am directed to advise you that the Tribunal has no way of knowing in advance of an investigation whether a warrant exists in any given case. The Tribunal investigates all complaints in accordance with section 7 of the [Interception of Communications Act 1985: ‘the 1985 Act’, see paragraphs 16-33 below] establishing whether a relevant warrant or relevant certificate exists or had existed and, if so, whether there has been any contravention of sections 2 to 5. If ... the Tribunal concludes that there has been a contravention of sections 2 to 5, the Tribunal may take steps under sections 7(4), (5) and (6). In any case where there is found to have been no contravention, the Tribunal is not empowered to disclose whether or not authorised interception has taken place. In such instances, complainants are advised only that there has been no contravention of sections 2 to 5 in relation to a relevant warrant or a relevant certificate.”
7.  By a letter dated 16 December 1999 the ICT confirmed that it had thoroughly investigated the matter and was satisfied that there had been no contravention of sections 2 to 5 of the 1985 Act in relation to the relevant warrant or certificate.
8.  By a letter dated 9 September the applicants complained to the DPP of an unlawful interception, requesting the prosecution of those responsible. The DPP passed the matter to the Metropolitan Police for investigation. By a letter dated 7 October 1999 the police explained that no investigation could be completed until the ICT had investigated and that a police investigation might then follow if it could be shown that an unwarranted interception had taken place or if any of the other conditions set out in section 1(2)-(4) of the 1985 Act had not been met. The applicants pointed out, in their letter of 12 October 1999, that the vague, albeit statutory, response of the ICT would mean that they would not know whether a warrant had been issued or, if it had, whether it had been complied with. They would not, therefore, be in a position to make submissions to the police after the ICT investigation as to whether or not a criminal investigation was warranted. The applicants asked if, and if so how, the police could establish for themselves whether or not a warrant had been issued, so as to decide whether an investigation was required, and how the police would investigate, assuming there had been no warrant.
9.  The DPP responded on 19 October 1999 that the police had to await the ICT decision, and the police responded on 9 November 1999 that the applicants’ concerns were receiving the fullest attention, but that they were unable to enter into discussion on matters of internal procedure and inter-departmental investigation.
10.  On 21 December 1999 the applicants wrote to the police pointing out that, having received the decision of the ICT, they still did not know whether or not there had been a warrant or whether there had been unlawful interception. The response, dated 17 January 2000, assured the applicants that police officers were making enquires with the relevant agencies with a view to establishing whether there had been a breach of section 1 of the 1985 Act and identifying the appropriate investigative authority. The police informed the applicants by a letter dated 31 March 2000 that their enquiries continued, and, by a letter dated 13 April 2000, that these enquiries had not revealed an offence contrary to section 1 of the 1985 Act.
11.  On 15 December 2000 the former statutory regime for the interception of communications was replaced by the Regulation of Investigatory Powers Act 2000 (see paragraphs 34-39 below) and a new tribunal, the IPT, was created.
12.  On 13 August 2001 the applicants began proceedings in the IPT against the security and intelligence agencies of the United Kingdom, complaining of interferences with their rights to privacy for their telephone and other communications from 2 October 2000 onwards (British-Irish Rights Watch and others v. The Security Service and others, IPT/01/62/CH). The IPT, sitting as its President and Vice-President (a Court of Appeal and a High Court judge), had security clearance and was able to proceed in the light not just of open evidence filed by the defendant services but also confidential evidence, which could not be made public for reasons of national security.
13.  On 9 December 2004 the IPT made a number of preliminary rulings on points of law. Although the applicants had initially formulated a number of claims, by the time of the ruling these had been narrowed down to a single complaint about the lawfulness of the “filtering process”, whereby communications between the United Kingdom and an external source, captured under a warrant pursuant to section 8(4) of the 2000 Act (which had replaced section 3(2) of the 1985 Act: see paragraphs 34-39 below), were sorted and accessed pursuant to secret selection criteria. The question was, therefore, whether “the process of filtering intercepted telephone calls made from the UK to overseas telephones ... breaches Article 8 § 2 [of the Convention] because it is not ‘in accordance with the law’”.
14.  The IPT found that the difference between the warrant schemes for interception of internal and external communications was justifiable, because it was more necessary for additional care to be taken with regard to interference with privacy by a Government in relation to domestic telecommunications, given the substantial potential control it exercised in this field; and also because its knowledge of, and control over, external communications was likely to be much less extensive.
15.  As to whether the law was sufficiently accessible and foreseeable for the purposes of Article 8 § 2, the IPT observed:
“The selection criteria in relation to accessing a large quantity of as yet unexamined material obtained pursuant to a s8(4) warrant (as indeed in relation to material obtained in relation to a s8(1) warrant) are those set out in s5(3) . The Complainants’ Counsel complains that there is no ‘publicly stated material indicating that a relevant person is satisfied that the [accessing] of a particular individual’s telephone call is proportionate’. But the Respondents submit that there is indeed such publicly stated material, namely the provisions of s6(l) of the Human Rights Act which requires a public authority to act compatibly with Convention rights, and thus, it is submitted, imposes a duty to act proportionately in applying to the material the s5(3) criteria.
To that duty there is added the existence of seven safeguards listed by the Respondents’ Counsel, namely (1) the criminal prohibition on unlawful interception (2) the involvement of the Secretary of State (3) the guiding role of the Joint Intelligence Committee (‘JIC’) (4) the Code of Practice (5) the oversight by the Interception of Communication Commissioner (whose powers are set out in Part IV of the Act) (6) the availability of proceedings before this Tribunal and (7) the oversight by the Intelligence and Security Committee, an all-party body of nine Parliamentarians created by the Intelligence Services Act 1994 ...
It is plain that, although in fact the existence of all these safeguards is publicly known, it is not part of the requirements for accessibility or foreseeability that the precise details of those safeguards should be published. The Complainants’ Counsel has pointed out that it appears from the Respondents’ evidence that there are in existence additional operating procedures, as would be expected given the requirements that there be the extra safeguards required by s16 of the Act, and the obligation of the Secretary of State to ensure their existence under s15(1)(b). It is not suggested by the Complainants that the nature of those operating procedures be disclosed, but that their existence, i.e. something along the lines of what is in the Respondents’ evidence, should itself be disclosed in the Code of Practice.
We are unpersuaded by this. First, such a statement in the Code of Practice, namely as to the existence of such procedures, would in fact take the matter no further than it already stands by virtue of the words of the statute. But in any event, the existence of such procedures is only one of the substantial number of safeguards which are known to exist. Accessibility and foreseeability are satisfied by the knowledge of the criteria and the knowledge of the existence of those multiple safeguards.
... [F]oreseeability is only expected to a degree that is reasonable in the circumstances, and the circumstances here are those of national security ... In this case the legislation is adequate and the guidelines are clear. Foreseeability does not require that a person who telephones abroad knows that his conversation is going to be intercepted because of the existence of a valid s. 8(4) warrant. ...
The provisions, in this case the right to intercept and access material covered by a s.8(4) warrant, and the criteria by reference to which it is exercised, are in our judgment sufficiently accessible and foreseeable to be in accordance with law. The parameters in which the discretion to conduct interception is carried on, by reference to s. 5(3) and subject to the safeguards referred to, are plain from the face of the statute. In this difficult and perilous area of national security, taking into account both the necessary narrow approach to Article 8(2) and the fact that the burden is placed upon the Respondent, we are satisfied that the balance is properly struck.”